Elements of a Wrongful Termination Lawsuit

Learn what you have to prove to win a wrongful termination case.

Enter Your Zip Code to Find an Employment Lawyer Near You

Enter Your Zip Code to Connect with a Lawyer Serving Your Area

Gavel and Scales

Have you lost your job under suspicious or unfair circumstances? If so, you might well have questions about your legal rights -- and your chances of winning a wrongful termination lawsuit. 

Wrongful termination refers to any illegal reason for firing. Of course, there are plenty of reasons for firing that are perfectly legal. However, if you were fired in breach of an employment contract, for discriminatory reasons, or in violation of public policy, for example, you might have a strong legal claim against your former employer. 

This article explains what you have to prove to win three common types of wrongful termination claims: contract cases, discrimination cases, and retaliation cases. These proof requirements are often called the "elements" of a case. Unless you have evidence of each element, your case may get thrown out before a jury even sees it. 

Breach of Contract

In the United States, the vast majority of employees work at will. This means they can quit at any time, and can be fired at any time for any reason that isn't illegal. (Illegal reasons for firing include discrimination, for example.) Many employees mistakenly believe that their employer must have a good reason -- called "good cause" or "just cause" -- to fire them. Generally speaking, however, this isn't true. As long you work at will, an employer can fire you for even silly or unfair reasons, as long as that reason isn't illegal. An at-will employee can be fired for being a poor fit, because the boss wants to hire his own sister for the job, because of the employee's taste in music or habit of humming in the hallways. 

Not all employees work at will, however. If you have an employment contract that limits your employer's right to fire you, you are no longer an at-will employee. If you are fired for reasons that are not allowed by your contract, you might have a breach of contract claim. (To learn more about written, oral, and implied employment contracts, see Lawsuits for Breach of Employment Contract.) 

To bring a breach of contract claim, you will have to prove these elements:

  • You had an employment contract limiting the employer's right to fire you. As noted above, many employees do not; some employees have employment contracts for at-will employment. You will have to show that you had an employment agreement that changed your at-will status. 
  • You held up your end of the deal. You must show that you did what was required of you under the contract (called "performance"). For example, if your employment contract said you would not be fired for one year as long as you completed all of the company's financial reports on time, you would have to show that you had done what you promised. 
  • You were fired in circumstances that breach the contract. For example, if you had an oral agreement with your boss that you would not be fired until the company completed its restructuring, and you were in fact fired months before the reorganization was complete, you would satisfy this element. 
  • You suffered damages as a result of the breach. Typically, damages in a contract case consist of the compensation you would have earned, and the benefits and other job perks you would have received, had your employer not fired you. 

Discrimination Cases

Even at-will employees may not be fired for discriminatory reasons. Under federal law, employees may not be fired because of their race, color, national origin, sex, religion, disability, age (if the employee is at least 40), citizenship status, or genetic information. State laws are often more protective. For example, employees are protected from discrimination based on their sexual orientation in a number of states. (To fine out your state's rules, select it from the list at State Wrongful Termination Laws.)

To win a discrimination case, it isn't enough to show that you were fired and employees who don't share your protected trait were not: You must show that you were fired because of your protected trait. For example, there might be many perfectly valid reasons why a company might fire a female manager while retaining a male manager. However, if the company's decision was based on gender, that would be discriminatory. 

The elements of a discrimination claim in the firing context are: 

  • The employee was a member of a protected class. 
  • The employee was qualified for the position. 
  • The employee was fired.
  • At least one employee outside of the fired employee's protected class was not terminated.
  • It is more likely than not that the decision was based on the employee's protected class. 

Of course, that last element can be very difficult to prove. Evidence of a discriminatory motive might consist of statements ("in my experience, women don't tend to return to work once they have a baby"); statistics (nine out of ten people laid off were over the age of 60); or policies (for example, physical job requirements that might unfairly exclude employees with disabilities). 


To prove retaliation, you must show that you were fired because you exercised a legal right. The elements of this type of claim are: 

  • You engaged in legally protected activity (such as filing a harassment or discrimination complaint, taking FMLA leave, complaining about workplace safety, participating in a company investigation of harassment, and so on). 
  • You were fired because of your activity. Often, timing is the key to proving a link between your protected activity and your firing. For example, if you were fired for alleged performance problems immediately after you filed a wage and hour complaint, and you had no performance problems in the past, that could help you prove that you were really fired because of your complaint.
  • You suffered a negative job consequence as a result of the employer's action (in other words, you were fired and lost wages, benefits, and so on). 

What to Do Next

If you believe your firing fits into one of these categories -- or if you feel like you were fired unfairly for other reasons -- you should consult with an experienced employment attorney right away. An attorney can review the facts, explain which legal theories might fit your situation, and help you decide how best to proceed. 

Talk to a Lawyer

Want to talk to an attorney? Start here.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Connect with local attorneys